Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Catterson, J.P., McGuire, Moskowitz, DeGrasse, Freedman, JJ.

7851/04 84556/05 84906/05

Plaintiff Yun Tung Chow sustained an eye injury while using defendants' product, crystalline sodium hydroxide, packaged as a drain cleaner called "Lewis Red Devil Lye." When injured, Chow was attempting to use the lye to unclog a floor drain in the kitchen of the restaurant where he worked. A warning printed on the label of the bottle stated that the lye should be used only as directed. The warning also advised users to "[k]eep face away from can and drain at all times" and that "[m]isuse may result in splash back and serious injury." The label's directions called for the insertion of only one tablespoon of lye directly into a drain. Despite the warning and directions, Chow mixed three spoonfuls of lye with three cups of water in an aluminum can. Without using eye protection, another precaution directed by the label, Chow bent over and poured the mixture into the drain. At that point, caustic liquid splashed back into Chow's face, causing the injury. The relevant negligence and strict liability causes of action are based on theories of inadequate warning and design defect. The court properly dismissed the inadequate warning claims. Chow testified that he made no attempt to read or to obtain assistance in reading the label; accordingly, any purported inadequacies in the product's labeling were not a substantial factor in bringing about the injury (see Perez v Radar Realty, 34 AD3d 305, 306 [2006]; Sosna v American Home Prods., 298 AD2d 158 [2002]; Guadalupe v Drackett Prods. Co., 253 AD2d 378 [1998]).*fn1

Plaintiffs base their design defect claim upon lye's propensity to cause splashback. "[A] defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce" (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983] [citation and internal quotation marks omitted]).

On a summary judgment motion in a products liability case, "if a defendant comes forward with any evidence that the accident was not necessarily attributable to a defect, the plaintiff must then produce direct evidence of a defect" (Sideris v Simon A. Rented Servs., 254 AD2d 408, 409 [1998] [citation and internal quotation marks omitted]). In a design defect case, the evidence a plaintiff is required to produce must establish "that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner" (Voss at 108). Defendants have met their burden by making a prima facie showing that Chow's failure to heed the product warning was the sole proximate cause of the accident (see e.g. Guadalupe, 253 AD2d at 378; Sabbatino v Rosin & Sons Hardware & Paint, 253 AD2d 417 [1998], lv denied 93 NY2d 817 [1999]).

To meet their own burden, plaintiffs rely upon the affidavit of Meyer Rosen, a chemist and chemical engineer, who opines that Red Devil Lye is unreasonably dangerous and has known propensity to cause splashback. Rosen next posits that nothing Chow did caused his injury. This aspect of Rosen's opinion lacks probative value because it omits critical discussion of Chow's use of more than the recommended one tablespoon of lye as well as his failure to keep his face away from the drain per the label's instructions. The omission is significant because a manufacturer need not incorporate safety features into its product so as to guarantee that no harm will come to every user no matter how careless or reckless (see Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 481 [1980] [citations omitted]). Rosen also opines that a safer alternative to the product can be created by diluting it to a three to five percent sodium hydroxide composition. How he arrived at these percentages is unexplained. Also, without citing a basis for his opinion, Rosen simply concludes that his recommended dilution of the product would provide drain cleaning power strong enough to open clogged drains although it would take "somewhat longer to do the job." Similarly unsupported is Rosen's postulation that bottling lye in a water-based solution would not change its chemical composition or render it ineffective. In considering the feasibility of a safer alternative design, "it must be recognized that two differently designed products that . . . are generally similar in function, may nonetheless yield results so different in quality as to make it impossible to characterize the design of the safer product as a feasible alternative to the design of the more hazardous product" (see Rose v Brown & Williamson Tobacco Corp., 53 AD3d 80, 84 [2008], affd sub nom. Adamo v Brown & Williamson Tobacco Corp., 11 NY3d 545 [2008], cert denied __ US __, 130 S Ct 197 [2009]). Rosen's affidavit is insufficient to raise a triable issue of fact because it does not set forth the foundation for his conclusion that his suggested alternatives are feasible (cf. David v County of Suffolk, 1 NY3d 525 [2003]). As such, the affidavit falls short of explaining how the product can feasibly be made safer, as required by Wegenroth v Formula Equip. Leasing, Inc. (11 AD3d 677, 680 [2004]), a case cited by the dissent.

Rosen's choice of source materials is also dubious. Rosen cites a 1970 proposal by the Food and Drug Administration for an amendment of the FHSA so as to have liquid drain cleaners consisting of 10% or more of sodium hydroxide listed as banned hazardous substances. By its own terms, however, the proposal was not aimed at preventing splashback. Its purpose was to curb "serious injuries and some deaths following accidental ingestion" of liquid drain cleaners by children under five years of age. Rosen also cites a 1989 letter to the Consumer Product Safety Commission from The Association of Trial Lawyers of America. It should go without saying that in the field of chemistry, a letter from a bar association would not fall within the "professional reliability" exception to the rule that an expert's opinion must be based upon facts in the record or personally known to the expert (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984]). We have considered plaintiffs' remaining contentions and find them without merit. All concur except Moskowitz and Freedman, JJ. who dissent in a memorandum by Freedman, J. as follows: FREEDMAN, J. (dissenting)

I would reverse and deny summary judgment to defendants because plaintiffs have raised an issue of fact whether defendants' drain cleaning product, Lewis Red Devil Lye, was defectively designed.

Plaintiff Yun Tung Chow was seriously burned and blinded in one eye after Red Devil Lye splashed back onto his face while he was using it to clean a clogged floor drain at a restaurant where he was employed. Red Devil Lye was a powdered substance made of 100% sodium hydroxide, which is a powerful caustic agent capable of dissolving organic tissue by chemical action. Chow, who had immigrated to this country 11 years earlier and could not read English, testified that he had used Red Devil Lye numerous times before, but was unable to read the directions and warnings on its label, which instructed users to pour one tablespoon of Red Devil Lye directly into the clogged drain. Instead, since only about three spoonfuls of Red Devil Lye were left in the container, Chow put the remainder into an aluminum can, mixed in about three cups of water, and poured the mixture down the drain. When Chow bent over the drain to examine it, the contents spouted back onto his face and injured him.

I agree with the majority that the motion court properly dismissed plaintiffs' products liability claim based on the theory of inadequate warning. The Red Devil Lye container was labeled "poison," bore a picture of a skull and crossbones, and warned users to wear eye protection when using the product. The label warned of the risk of splashback if Red Devil Lye was used improperly, and that physical contact with the product could cause burning or blindness. Since Chow testified that he did not read the label or ask another person to read it to him, any purported inadequacies in the product's labeling were not a substantial factor in bringing about the injury (see Perez v Radar Realty, 34 AD3d 305, 306 [2006]; Sosna v American Home Prods., 298 AD2d 158 [2002]; Guadalupe v Drackett Prods. Co., 253 AD2d 378 [1998]).

While defendants did not meet their burden of demonstrating that the labeling on the can complied with the Federal Hazardous Substances Act (15 USC § 1261 et seq.) so as to preclude a State law improper labeling claim (see Guadalupe at 378), additional labeling would not have prevented Chow's injury.

However, plaintiffs raised a triable issue of fact with respect to their strict products liability claim based on defective design, by introducing expert testimony that Red Devil Lye was too dangerous to be marketed for use by general consumers rather than professionals. To establish a prima facie case for a defective design claim, the plaintiff must show that the manufacturer marketed a product that was not "reasonably safe" because of its defective design, and that the defective design was a substantial factor in causing injury (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107-109 [1983]). A defectively designed product is deemed not to be reasonably safe where a reasonable person, knowing at the time of manufacture about the defect, would conclude that the inherent risk of introducing the product into the stream of commerce outweighed its utility (see id. at 108). A plaintiff can proffer expert testimony to establish that a product was defectively designed (see Warnke v Warner-Lambert Co., 21 AD3d 654, 656 [2005]). The risk-utility analysis may also involve a determination as to whether there is a feasible alternative design that would make the product safer. "Where . . . a qualified expert opines that a particular product is ...

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